Is a Defendant's Notice of Interest sufficient to lift the statute of limitations under Section 360 of the Bankruptcy and Insolvency Act?

California, United States of America

The following excerpt is from Azar v. Escher, B248970 (Cal. App. 2014):

Defendant contends that the Note is insufficient because it does not specify the interest rate, a new due date, or a payment schedule. Section 360 "does not prescribe any form in which an acknowledgement or promise sufficient to lift the ban of the statute of limitations shall be made. It is sufficient if it shows the writer treats the indebtedness as subsisting, and one which the debtor is liable and willing to pay. From this acknowledgement the law implies the promise to pay." (Searles v. Gonzalez (1923) 191 Cal. 426, 430.)

The requirement of "some writing" under section 360 is generously interpreted. In one instance, a debtor wrote a letter "'To My Administrator'" in June 1942, acknowledging two notesone from 1938 and one from 1942in favor of the plaintiffs. The letter did not specify an interest rate, or a repayment schedule, or a due date, but states that "'[s]hould these notes be outstanding and unpaid at the time of my death, I desire that they be immediately paid out of my estate.'" The debtor died in August 1945. In 1946, the plaintiffs sued the decedent's estate to collect the debt; the estate asserted the statute of limitations in defense. (Herman v. Brown (1949) 91 Cal.App.2d 758, 758-759.)

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